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Friday, October 19, 2012

Ind. Decisions - More on: Federal judge Pratt upholds Indiana's Facebook ban for sex offenders

Updating this June 24, 2012 ILB entry, which includes links to the Indiana opinion in Doe v. Prosecutor, Nebraska's federal Judge Kopf on Oct. 17th struck down a Nebraska sex offender registry statute on 1st Amendment grounds.

The 73-page opinion is in the case of John Doe, et al. v. State of Nebraska. The Sentencing Law Blog quotes from it here.

ILB: I looked for references to the Indiana opinion. Here is what the Nebraska opinion has to say, at pp. 36 and 37 about Indiana's Doe case:

I am aware of Doe v. Prosecutor,(S.D. Ind. 2012)(holding that Indiana’s ban on accessing social networking sites, instant messaging services, and chat room services by certain sex offenders did not violate First Amendment). With respect, and for numerous reasons, I am not persuaded by that decision. I will highlight only one point to illustrate my view that the Indiana judge’s reasoning throughout the opinion is weak.

Central to the judge’s ruling was a curious statement. The judge wrote that “Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal . . . .” (emphasis in original). Setting to one side the dubious proposition that a plaintiff making a First Amendment challenge is obligated to inform the state how to write a statute in conformity with the Constitution, there is a very easy answer to the judge’s rhetorical flourish. That is, the constitutional response to the judge’s concern is to narrow the statute to those who have preyed upon children using the banned sites.Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary — use a scalpel rather than a blunderbuss. For reasons that are unclear, the judge wholly ignores this seemingly obvious point.

Posted by Marcia Oddi on October 19, 2012 02:50 PM
Posted to Ind Fed D.Ct. Decisions